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Webinar on Extractivism, Human Rights and ISDS: Hard Law vs Soft Law

Aldo Orellana Lopez of TerraJusta joined panellists Carla García Zendejas (Center for International Environmental Law), Jen Moore (Institute for Policy Studies), and Vidalina Morales (Cripdes El Salvador). With reference to particular examples in Latin America they discussed arbitration suits (Investor State Dispute Settlement) which have been brought by extractive industries in relation to licenses and operations which are being resisted by communities defending their territories, environment and human rights. Aldo spoke in particular about the ‘Aymarazo‘ in Peru and the legacy of Chevron-Texaco in Ecuador.

The webinar was hosted by the Rosa Luxemburg Foundation, the Transnational Institute and Transform Europe. It was facilitated by John Cavanagh of the Institute for Policy Studies.

Rights for People, Rules for Corporations

The public is well aware by now that business-as-usual is not an option if we are to avert ecological breakdown and move to a fairer, safer and more peaceful way of co-existing on the planet.

Business-as-usual means maintaining trade rules and treaties that give corporations enormous power to endlessly extract natural resources. Business-as-usual means sacrificing communities and ecosystems in those places to feed rampant consumerism for the profit of a powerful minority.

We reject business-as-usual. We want a #BindingTreaty on Transnational Corporations and Human Rights and we are building solidarity across countries and movements to demand Rights for People, Rules for Corporations.

Video produced in collaboration with Global Justice Now and London Mining Network. Thanks to Coal Action Network and Colombia Solidarity Campaign.

PRESS RELEASE: Supreme Court Accepts Appeal of Peruvian Human Rights Defender and Overturns Sentence.

Cochabamba, Ottawa, Puno, Washington, October 10th 2018.

On Friday October 5th, the Peruvian Supreme Court accepted Walter Aduviri’s appeal and overturned the sentence against him. Aduviri was a spokesperson for the Aymara indigenous communities during the 2011 Aymarazo protests in Peru against the proposed Santa Ana mining project owned by Bear Creek Mining Corporation from Canada. The Supreme Court ruled that Aduviri’s appeal was well founded and ordered that the case should begin again from zero in the regional courts.

Both local and international civil society groups have been following the case closely because of two dangerous legal precedents in the case that risked weakening the broader movement in Peru for indigenous rights and in defense water, land and territory. For now, those precedents have been blocked.

This was the last in a string of legal cases against community leaders that followed the 2011 protests. Days prior to the court’s decision, Executive Director of Puno-based human rights organization, Derechos Humanos y Medio Ambiente’s (DHUMA) Cristobal Yugra Villanueva, warned about the implications of the ruling. He said,

This decision will be precedent-setting for the future of social protest in Peru. It will affect whether or not Indigenous peoples feel free to protest, despite the fact that this right is guaranteed by the Peruvian Constitution.  

A campaign by local and International organizations has been underway for several months  to highlight this emblematic case. In September of this year, more than 130 organizations around the world signed a public statement condemning the criminalization of social protest and calling for the protection of human rights defenders working in defense of their land, water and territory. The public statement made direct reference to Aduviri’s case and called on the Supreme Court to acquit him of all charges.

It stated:

We recognise that Walter Aduviri’s case is not an isolated one. Rather, it forms part of a pro-mining agenda in Peru. Another example of this architecture is the constant declaration of States of Emergency in mining zones. These States of Emergency suspend the most fundamental constitutional rights of the population, bringing with it political repression; criminalisation and the general stigmatization of social organisations and communities. As in Peru, across the continent, multinationals enter territories with the sole intention of converting common goods into financialised resources, leaving communities and ecosystems destroyed in their wake. Where there is resistance, the state systematically represses, imprisons and even creates the conditions for the assassination of defenders.

The pleas for Aduviri’s acquittal appear to have worked. On the morning of Friday October 5th, in the presence of his lawyers, the Court overturned Aduviri’s sentence freeing him from the threat of immediate incarceration.

According to DHUMA:

In the recent judicial decision, the Court has recognized that the criminal proceedings brought in first and second instances before the High Court in Puno, were characterized by a clear violation of due process.  In the case of Walter Aduviri and the Aymarazo social protests, the judges did not respect the charges originally filed by the public prosecutor, but rather ‘decoupled’ or deviated from these charges and convicted him as ‘indirect perpetrator’. This was illegal and this has been our position since the beginning of the legal process.

Lawyers at DHUMA have accompanied many of the other Aymara community members that faced judicial persecution following the Aymarazo social protest. Their relentless work in defense of the rights of indigenous communities in Peru was recognised just last week when their representatives received the prestigious Letelier Moffitt international human rights award from the Institute for Policy Studies in Washington DC.

Bear Creek Mining Corporation, after the Aymarazo, also filed a multi-million dollar compensation claim against Peru at ICSID, the investment arbitration arm of the World Bank, for the cancellation of the Santa Ana mine. In December 2017, the same month in which the courts of “justice” condemned Aduviri, ICSID ruled in favor of Bear Creek and ordered Peru to pay more than USD$30 million in compensation, including legal fees and interest. Local community members have been calling for the compensation not be paid but rather for communities to be compensated for the economic losses and social upheaval caused by the presence of the mining company. This debate will continue in Peru in the weeks and months ahead.

NOTE:

On October 7th, 2018, Aduviri was elected as governor of the department of Puno. Up until days prior to the election, Aduviri was the favoured candidate but it was unclear as to whether he would able to run in the elections. The Supreme Court’s decisions enabled his participation.

DHUMA -Human Rights and Environment (Derechos Humanos y Medio Ambiente)

The Democracy Center

The Institute for Policy Studies (IPS)

MiningWatch Canada

 

CONTACTS:

Radio interviews about the ‘Aymarazo’

In this series of three interviews with Melbourne radio station 3CR Democracy Center researcher and campaigner Thomas Mc Donagh updates listeners on the ‘Aymarazo’ campaign as it developed over the second half of 2018.

This case, emblematic of the criminalisation of social leaders resisting extractive projects across Latin America, culminated in the October 5th Supreme Court ruling that overturned the prison sentence against Aymara indigenous spokesperson Walter Aduviri after a 7-year legal battle.

The interviews cover the background to the case in a 2011 regional strike that successfully blocked a proposed silver mine owned by Canadian multinational mining corporation Bear Creek; the corporations’ counter-attack using the Investor State Dispute Settlement (ISDS) arbitration tribunal system; and the long struggle of communities to clear the names of their leaders and spokespersons dragged through the courts in what amounted to a blatant process of judicial persecution.

He specifically focuses on the court proceedings against indigenous social leader Walter Aduviri, sentenced in Nov 2017 to seven years in prison and a fine of over $500,000 and the international solidarity campaign mobilised, not just to push for the acquittal of Aduviri, but also for an end to the criminalisation of protest against extractive industries in the region more broadly.

You can listen to the interviews on 3CR’s own website here

All three interview segments are available in the playlist below. If you click on the Soundcloud link you will also find a further interview on the case from 2017 (in English and Spanish) with Real World Radio.

Video Conference – International Solidarity Campaign with the anti-mining struggle in El Salvador

El Salvador – When The Seeds Of Resistance Bloom

If ever there was an example of how the seeds of a local battle flowered into a formidable global campaign, it was this one. At a time when organised dissent is both under attack and more urgent than ever, we not only need to celebrate the victories that involve genuine international solidarity, we need to learn from them.

More on this topic

Video Conference - International Solidarity Campaign with the anti-mining struggle in El Salvador

We sat down with five (of the many) people that have been deeply involved in this titan effort to reflect on what they achieved and how, and the lessons that they have learned in the process.

Our interviewees were Vidalina Morales from the Economic and Social Development Association of Santa Marta (ADES); Pedro Cabezas from Association for the Development of El Salvador, (CRIPDES) and Saul Baños from the Foundation for the Study of the Application of the Law (FESPAD) – all three are member organisations of the National Roundtable against Metallic Mining in El Salvador (Pedro Cabezas was also communications coordinator for the International Allies); Manuel Pérez-Rocha from the Institute of Policy Studies in Washington DC; and Jen Moore from Mining Watch Canada.

We focus here in particular on what we can learn from the international campaign against the World Bank case, but also look at some aspects of the simultaneous effort to support the anti-mining struggle on the ground in El Salvador. The international legal case was just one of a range of intervention strategies used by the corporations involved. The organising effort that successfully countered all of them holds valuable lessons for strategic campaigning everywhere.

More on this topic

The Anti-Mining Struggle in El Salvador - Corporate Strategies and Community Resistance

ISDS – Investor State Dispute Settlement

In 2004, after two years of searching for gold in El Salvador, the Pacific Rim Mining Corporation requested permits to begin mining close to the Lempa River. After several years of negotiations, political manoeuvring and conflicts with the local communities that tragically cost the lives of four environmental activists –one of whom, Dora Alicia Recinos Sorto, was eight months pregnant- the request was declined on the basis that the company had not met the necessary regulatory requirements and a nationwide moratorium on all new mining projects was put in place.

The company cried foul. They maintained that they had been lead to believe that there was government support for their project and the change of mining policy was thus unfair and illegal and they should be compensated to the tune of the market value of the unexploited gold – $314m later reduced to $250m. They initiated an investor-state dispute settlement (ISDS) case at the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID).

This ISDS system, despite existing for over 50 years, has only in the last ten years become a weapon of choice for multinational corporations. Over this time, the number of ISDS cases has exploded with 2015 setting an all time record of 74 new cases in just one year.

Pacific Rim is a Canadian company, also registered in the Cayman Islands tax haven. In its first attempt to bring the ISDS case against El Salvador it tried to use investment protections in the Free Trade Agreement between the US and Central America and the Dominican Republic (DR-CAFTA). To do so it set up a post-box address in the US state of Nevada. In 2012, ICSID declined jurisdiction under DR-CAFTA and in the Tribunal’s decision, Pacific Rim in the USA was described as ‘more akin to a shell company’. However, despite this corporate manipulation of the legal system, the tribunal would later uphold jurisdiction under El Salvador’s domestic investment law and allow the case to proceed. (The following year El Salvador amended this law, no longer giving transnational corporations recourse to international tribunals.)

By 2013, Pacific Rim was in financial trouble and was bought out by Oceana Gold from Australia. By late 2016, after a long international campaign, the ICSID tribunal finally ruled against the company and ordered it to pay $8 million towards El Salvador’s more than $12million in legal fees. The ruling was hailed as a major victory for the struggles in El Salvador and internationally.

More on ISDS

It came at the end of several years of international campaigning and would pave the way for the outright ban on mining in the country that followed a few months later. The campaign holds a number of lessons – particularly with regard to how we can connect local and global struggles effectively.

Narratives and Messaging

We should never underestimate a powerful narrative. This universal truth for campaigners was also one of the major lessons for our interviewees.

Mining pollutes and mining kills. Credit: Genia Yatzenko

Water and Sovereignty – Connecting local issues to systemic ones

The story of a small Central American nation’s struggle to put the health of its population above the profits from gold mining was always going to grab some international attention. But when combined with the ways in which international governance institutions were being manipulated in favour of corporate interests, it became not just a powerful unifying narrative, but a story everybody wanted to tell.

More on movement-building in Latin America

Ten Years After the Defeat of the Free Trade Area of the Americas (FTAA) – Lessons for Current Struggles

According to Manuel Pérez-Rocha, “we were able to weave together the strands of this narrative, connecting water, health and the local defence of resources and territory to the imposition of corporate power by means of instruments such as ICSID…we all worked based on this narrative”. For Pedro Cabezas, this coherent narrative reflected “the shared vision of all of the actors involved in the struggle”. And so provided an important point of unity for the campaigners.

If we divide it in two, the first part of this narrative was about water, with the salient points being: El Salvador is a water stressed country; conditions are not right for mining in El Salvador; pollution from mining jeopardizes our water and therefore our health; mining puts the Lempa River – the primary source of water for more than half the population- at risk.

While Pacific Rim-Oceana Gold and mining proponents predictably attempted to frame the issue as an economic one – “it’s a no-brainer for such a resource-strapped government to cash-in on its underground mineral wealth” – the campaign managed to constantly bring the focus of debate back to the local defence of water and health – both in local and international coverage.

For Cabezas “focusing on the defence of water was always going to resonate at all levels – political, social, academic and economic….because of the grave water crisis that the country is going through….a crisis widely documented not only by government and local academic institutions, but also by international bodies such as the UN”.

For Jen Moore, connecting the idea of “water being more precious than gold”…..and “the unjust means that corporations have to bully countries around in the globalized economy today” provided a real coherency between the local, the national and the international. And having a narrative that combined local concerns with global ones meant that a real diversity of groups could engage with the issues from a diversity of entry points or perspectives.

Protest in El Salvador. Credit Genia Yatzenko

The second strand of the messaging strategy was to focus on the issue of sovereignty and self-determination. Privatised justice for big business/unaccountable corporate-dominated tribunals/a weapon for Northern corporations to pressure governments: all of these ways of characterizing the free trade and investment rules system would resonate strongly in any context. But in post-colonial Latin America, in a country well used to Northern aggression, they were particularly powerful.

Working with international civil society experts, such as the Center for International Environmental Law, the Institute for Policy Studies, Mining Watch, and Oxfam, as well as academics from the University of Central America in El Salvador, the American University and others, the campaign was able to base its analysis of the trade and investment system on solid research.

This complex system was then translated into terms understandable to non-experts by making the connection very clear between the trade and investment regime and the issues that directly affect people’s lives – such as water and public health.

When Salvadoran attorney Yanira Cortez visited Canada in 2015, for example, she repeatedly stated that the amount being demanded in compensation by Pacific Rim in the ISDS case was equivalent to three years of the Salvadoran national health, education and public safety budgets combined.

Delivering the message – Making it emblematic

A clear, evidence-based narrative is only as powerful as the ways in which its delivered and amplified.

If you do a Google search with the terms ‘Pacific Rim’ and ‘El Salvador’, you get over 359,000 results (and over 159,000 if you search ‘Oceana Gold’ and ‘El Salvador’). The figures speak for themselves.

The case has been covered by publications as diverse as: the Nation (several times), the Guardian (several times), the Huffington Post, the Financial Times, the Washington Post, CBC, Reuters, the New York Times, the BBC, the London Review of Books, CounterPunch and Upside Down World – not forgetting Xinhuanet in China and Kalikasan in the Philippines, Le Monde in France, Al Jazeera, and TeleSur.

Even a folk SONG has been written about the case.

The extent of the coverage the case achieved was a result of working with a multitude of diverse allies on the one hand, and on the other, by connecting the case to on-going international campaigns on related issues. These included debates around new free trade deals like the TPP and TTIP; how mining and water relate to climate change and broader sustainability debates; as well as issues related to corporate accountability and human rights. Positioning the case in the international public imagination as a symbol of some of these broader struggles helped turn a localised struggle in to a powerful global symbol.

One very concrete result of the extensive international coverage was that it obliged local actors in El Salvador, including politicians, to take a position on the issue.

According to Saul Baños “a lot of local media outlets are co-opted in the service of local elites…the case was getting more attention outside the country than inside”. For him, the persistence of international allies in raising the profile of the issue “not only helped to explain the risks of the ISDS system but also meant that local politicians cannot avoid the issue.”

Another result was indirect pressure on the ICSID tribunal itself. Given the profile of the case and the coverage it was receiving, it is not surprising that one of the three tribunal members commented afterwards, off the record, that “civil society pressure in this case has been essential.” In the end they were passing judgement not just on a single case based on a local issue, but on all that the case came to represent after several years of ‘globalising the struggle’.

Alliances and Solidarity

While the communities played a leading role in their territories, it didn’t end there – [the struggle] went national, and then it went global”. Pedro Cabezas.

Given the nature of the El Salvador case, with one front being fought on the ground in Central America, and the other internationally, it was inevitable that a diverse set of actors would be involved. What was less clear though was just how broad and diverse it would become, and how those alliances would function.

Strength in diversity

From anti-mining activists in Canada to the Catholic Church hierarchy of El Salvador, and from the Maritime Union of Australia to the Central American University, for our interviewees, one of the major lessons from the campaign came from working alongside an extremely diverse group of allies.

For Vidalina Morales: “it’s not very common that communities are in agreement with the State. In terms of the [ISDS] lawsuit…the communities and their organizations were able to find common cause together with the State and its defence lawyers; we were all in close coordination.”

At the closing stage of the ISDS case, for example, while the company was doing everything in its power to postpone the result so that it could hold out for a negotiated settlement1 with the government (i.e. some policy concessions or to allow the gold mine to go ahead), simultaneous protests were coordinated by civil society groups outside the World Bank offices in Washington DC and in San Salvador demanding that the tribunal delay no further and give its final result, while the government and its lawyers continued demanding the same thing inside the tribunal. A week later it did, in El Salvador’s favour.

Working hand in hand like this with the international investment law firm, Foley Hog, was another revelation for our interviewees. According to Perez Rocha in the run up to the ICSID tribunal’s decision, Foley Hog was “very open to civil society collaboration and figuring out the best ways to collectively apply pressure on the tribunal”. A team of investment lawyers rolling up their sleeves together with civil society groups was surprising to campaigners very much accustomed to seeing them as part of the problem.

Perez Rocha was also surprised by some other collaboration opportunities. Perhaps the most unexpected of these was with the US State Department. In the early stages of the ISDS case, after some pressure from the law firm representing El Salvador and civil society groups, the State Department agreed to submit an informed opinion to the ICSID tribunal to the effect that Pacific Rim in the USA was indeed just a shell company and shouldn’t be protected by CAFTA – an opinion the tribunal would later agree with.

For Perez Rocha, this was further evidence that “[the campaign] was a confluence of actors of very different kinds – this wasn’t just a civil society fight – we worked methodically with government officials, with the law firm, with the media and with the church”.

The Role of Coordination

While the Roundtable against Metal Mining in El Salvador has its own coordination mechanism – a committee made up of representatives of five of the eleven core organizations takes on the role- coordination with such a diversity of international allies was bound to present other challenges.

For two years, between 2013 and 2015 Pedro Cabezas was responsible for coordination between the international allies and the Roundtable in El Salvador. For him, having this dedicated coordination role allowed them to improve communication between the two networks.

Meanwhile, a group called International Allies against Mining in El Salvador, coordinated primarily by Mining Watch Canada and the Institute for Policy Studies (IPS) was established and to this day maintains regular communication with the Roundtable in El Salvador. The International Allies have monthly meeting calls and major decisions are sent to the Roundtable for feedback. A websitesocial media and mailing list are used to communicate campaign updates

Despite these coordination mechanisms, for Jen Moore, among the biggest challenges were “maintaining good, fluid communication between international allies and national and local organizations….It requires a lot of intentionality and effort”. These challenges were overcome thanks to “the visits between the countries, persisting with the regular meetings and making a real effort to maintain permanent communication”. This allowed them to continuously refine strategy and allowed international allies to be prepared at crucial moments in the campaign.

Jen Moore was also aware that this coordination is made a lot easier when there are NGOs with paid staff involved. This allowed her, for example, to dedicate the necessary time to coordinate with other Canadian groups and to maintain a permanent link with the international coalition and the Roundtable. “These processes are not pretty. Differences always arise, but we showed that with really intentional coordination, a lot can be achieved”.

From the Build Real Democracy collection

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“Two types of solidarity”

According to Cabezas, given that many of the groups working on the campaign internationally had a history of working in El Salvador dating back to the country’s civil war (1980-92) they had established personal and working relationships with members of the Roundtable. Groups such as Sister Cities, the Share Foundation, CISPES and Oxfam from the US; SalvAide from Canada; and the Romero Christian Initiative from Germany had a history of human rights work during the war, including supporting refugees (many of whom would later return to form the communities now resisting mining projects). According to Cabezas “their role had evolved over the years and when mining came along, they saw the abuse being carried out internationally by the corporation – and they got involved”.

Protest in Canada against the ISDS case

According to Perez Rocha “there was a lot of room to manoeuvre and a lot of flexibility because of the trust that existed between the organizations and the Roundtable”.

Perez Rocha’s organisation, the Institute for Policy Studies (IPS), had given their prestigious Letelier-Moffitt Human Rights Award to the El Salvador Roundtable against Metallic Mining in 2009. In accepting the award, Vidalina Morales said that it was an important international act of recognition that showed “the just, worthy and legitimate nature of our struggle”. Not only this, the prize was also an important step in consolidating the relationship between the Roundtable and IPS that would be crucial in the international campaign against the ISDS case.

For Vidalina Morales the “active support of the international community is fundamental for the struggles of our people. For us there is no doubt that this is the only way that we will be able to advance in the emancipatory process of our people. Solidarity is more necessary and urgent than ever”. For Morales solidarity is “something that allows us to stand alongside the other person both in the good times and during the difficult times…..solidarity is mutual support.”

Perez Rocha described “two different types of solidarity”. For him, one of these is more common among development agencies where there is a vertical relationship between funders and the communities being funded. And the other, that he espouses, is when “money is not at the centre of the relationship; [in these relationships] there is one overarching struggle with shared objectives.”

Cabezas agreed, “when donors and development agencies are involved, they often want to determine strategy, and this sometimes causes conflicts”. When asked about how this was overcome in the campaign he continued “through constant careful negotiation and a lot of patience”. For Cabezas international groups “should engage with the case in their own spaces e.g. the company being Canadian meant there was a role for Canadians….but priority should be given to being a conduit for the voices of frontline communities”.

For Jen Moore, the role of international solidarity organisations was quite clear: “remaining in communication, staying informed, visiting El Salvador when possible and then keeping our own social base and the media informed…in order to counter the lies and falsehoods of the companies”. Making connections internationally was another. “Given that we work in different parts of the world, we were able to facilitate contacts so that the delegation of affected communities in the Philippines could share their experiences with the same company.”

Complementary objectives

For Perez Rocha, another important factor in terms of solidifying the alliances with local groups, was to communicate early on that the focus of IPS’ work was on corporate power and the trade and investment system, and to explain how strengthening and lifting up a campaign like this one against the ISDS system in the global South contributed to both the Roundtable’s objectives in El Salvador and IPS’ broader international campaign goals. This common understanding of how these different goals complemented each other was crucial in order to globalise the struggle in ways that supported everyone’s overall objectives.

According to Jen Moore having clarity on long term objectives made it a lot easer to deal with differences in opinion regarding short-term tactics and objectives. For her clarity on the long term objective of banning metal mining outright in El Salvador “was fundamental for orienting the international campaign”.

Actions

For our interviewees, having a clear, powerfully amplified narrative that connected local and global issues on the one hand, and investing time, energy and resources in consolidating alliances on the other, were the foundation stones for building the successful international campaign. We also asked them about some of the specific actions that they felt were particularly effective at maintaining momentum and pressure.

They told us about attending the company’s AGMs to pressure shareholders; protests in Canada and Australia; actions at the World Bank offices in Washington DC and in San Salvador; an open letter to the head of the World Bank in 2011 signed by 244 international civil society organizations; another in 2014 signed by over 300 international groups; two Amicus Curiae/Friends of the Court briefs submitted to the ICSID tribunal in 2011 and in 2014; protests at the Canadian embassies both in El Salvador and in the US; the 2014 report Debunking 8 falsehoods by Pacific Rim/Oceana Gold; the 2014 Month of Action; the 2016 report on mining and supposed corporate social responsibility’ in El Salvador; and a more recent open letter to Oceana Gold demanding that it pay up and pack up signed by 280 organisations from around the globe.

While all of these campaign actions were significant, our interviewees put particular emphasis on some additional international initiatives.

Delegations and Visits – Weaving a web of Solidarity

The most significant of the several visits to El Salvador organised by the International Allies, according to our interviewees, was the 2013 fact-finding trip. A delegation of 45 people from 22 organizations in 12 countries participated in five days of conferences and strategy workshops and visits to mining-affected municipalities in the north of the country. A documentaryGold Or Water was made based on the experience and according to Perez Rocha, “it was a real milestone in the campaign as it strengthened the links between people from the international organizations with the Salvadoran groups”.

There were also several visits to the global North by Salvadorans. These included the 2013 North American Tour and the 2015 Stop the Suits Tour of Canada. For Jen Moore, this was important “to maintain the connections with people working in solidarity with El Salvador in Canada”. For her, bringing the voices of affected communities directly to the home countries of the company’s involved was a powerful way to demonstrate both to the public and to the authorities their “complicity in the structures that cause these problems”.

Once Oceana Gold had taken over Pacific Rim, Vidalina Morales also went on the Water Not Gold Tour of Australia in 2013. In collaboration with Australian trade unions and other civil society groups, she spent two weeks there spreading the story of the impact this Australian company was having on her home country. The International Allies also visited the Philippines in 2013 to strengthen connections with communities affected by Oceana Gold’s project and to document the impacts of mining there.

While international travel is often out of reach of most communities affected by extractive projects in Latin America, whenever there is a confluence of interests and objectives, and therefore available resources, these trips are a powerful way to consolidate alliances, build trust and apply pressure on the corporations involved in their own back yard.

Bringing The Case To International Fora

Another lesson for our interviewees was the importance of taking the case into international institutional spaces.

When five anti-mining activists were murdered between 2009 and 2011, the El Salvador case was brought before the Inter American Human Rights Commission which issued precautionary measures against the government of El Salvador. Next, the case was presented at the Permanent Peoples Tribunal (PPT) in Geneva Switzerland in 2014 with the help of groups like the Transnational Institute and the Institute for Policy Studies. For Saul Baños, while the rulings of the PPT are not legally binding, “they have political weight globally and are important ways to increase power”. A statement describing the human right violations of Pacific Rim-Oceana Gold was then submitted to the United Nations Human Rights Commission also in 2014, and the case has been taken up by advocates for a Binding Treaty for business and human rights at the UN.

Protest against the ISDS case in the USA

For Baños, all of these actions were important for raising the profile of the case and forcing it on to the government’s agenda “they [the government] are afraid of any kind of sanction that comes from an international body….this is why it’s important to further strengthen the international solidarity.”

Reaping the Harvest

The struggles of local communities all over Latin America in defence of their basic resources are never just local affairs. The extraction sites for gold or other minerals, or for oil and gas, are just the starting point on supply chains that begin in places like El Salvador, but often end in high-consumption economies far away – many in the global North. The abuses of those that control and profit from these supply chains rarely come up against a commensurate internationally coordinated response. In the case of El Salvador, they did.

As international movements, one of the major things that the campaign tells us is that when we have a clear, shared understanding of the ways in which local and international struggles relate to and complement each other, we can leverage the diversity of our relationships, privileges, power and resources to great effect.

In addition, the case leaves us with two other sets of overarching lessons.

The first relates to campaigning and strategy. We can never forget the basics of organising. Powerful narratives rooted in local realities, told and amplified well, are a powerful and unifying force. Relationships built on trust and intentional, committed (sometimes laborious) communications processes are the backbone of effective alliances. While international groups have no place dictating political strategy to local actors, this campaign showed the very effective ways that they can indirectly apply political pressure and the crucial role that they play in taking these struggles to the home countries of the corporations and institutions involved.

The second kind of lesson relates to the struggle ahead against the ISDS system itself. In its communiqué following the ISDS result, the El Salvador Roundtable stated that “El Salvador didn’t ‘win’ anything” – they just didn’t lose, there’s a difference. At the end of the day there is no corresponding mechanism for these communities to hold corporations legally accountable for their abuses. It’s a one-way street.

In the words of Vidalina Morales, “given the environmental damage, economic loss, social conflicts and corruption brought about by the corporation’s presence in El Salvador, they should have been the ones being sued…but no, the perpetrator sued the victim…in an upside down world.”

The Roundtable also described the ISDS system as “a form of blackmail” – a legal mechanism used to pressure governments with the threat of legal action, creating a ‘chilling effect’ on responsible public interest policies. Their rulings are based on the legal protections for investors granted in free trade and investment agreements and they have no obligation to balance these interests with social and environmental concerns.

The El Salvador context was relatively unique. The mining moratorium achieved there in 2009 meant that no new permits were issued in the intervening period, and the slow grind of national politics was able to run its course, and civil society pressure could slowly crystallise around an outright mining ban. But in other countries, where no such moratorium has existed, and where hundreds of permits or licenses have already been given, once communities and governments begin questioning the extractivist model, it’s too late. Changes to local or national laws result in a barrage of new ISDS cases – Colombia being a good case in point. El Salvador makes very clear that progress on our most urgent environmental issues is intimately connected to the dismantling of corporate power.

In terms of the path ahead on ISDS, Perez Rocha suggests two urgent tasks. One is to lift the veil on the details of settlements between governments and corporations in ISDS cases. The overall statistics of ISDS case results, excluding these settlements, are regularly used to defend the system. But if we can show the ways that these settlements also force governments to put corporate interests over the public good, we can make even clearer the injustices at the heart of the system.

The second is to continue to make local campaigns emblematic. Pacific Rim/Oceana Gold Vs El Salvador and other emblematic cases need be replaced with new high profile cases. He sees a real willingness to continue connecting other local struggles -around extractive projects in particular– to the global campaigns against corporate power and the free trade and investment regime.

In the words of Pedro Cabezas, “we have to continue globalizing the struggle!”.

1 In the extractive industries, the majority of ISDS cases end with a settlement of some sort i.e. policy concessions to the corporations – this is one of the least understood and most nefarious results of the whole ISDS system

Corporate Power Doesn’t Always Win: Remembering the FTAA

In retrospect, it sounds like a dream come true: a mobilized population, intercontinental organizing, cooperative left-wing governments — all culminating in the downfall of a major corporate-friendly trade agreement that would have covered a large chunk of the global economy.

It wasn’t just a dream. The proposed Free Trade Area of the Americas, or FTAA — meant to span all of North and Latin America — went down in defeat in 2005.

Now, over a decade later, as we face two other upcoming trade deals — the Transpacific Partnership (TPP) uniting 12 Pacific Rim countries, and the Transatlantic Trade and Investment Partnership (TTIP) connecting the United States and Europe — the FTAA victory has a lot to teach us about successful social movement strategies, and the challenges of building and sustaining power.

Not Just a Trade Deal

In 1994, Western hemisphere elites were riding high. The North American Free Trade Agreement, or NAFTA — which stitched the United States, Canada, and Mexico into a trade bloc — had been signed in January. By December, delegates at the first Summit of the Americas came up with a new, even more ambitious plan.

Meeting in Miami, the presidents from 34 countries (every nation in the Americas except Cuba) resolved to create what U.S. president George H.W. Bush had envisioned in 1990 as a “free trade zone stretching from the port of Anchorage to the Tierra del Fuego.” With a market of 800 million consumers and a GDP of $11.5 billion — 40 percent of the world’s total at the time — the FTAA promised to become the largest free trade area in the world. Those assembled decided to begin negotiations in earnest, with the aim of making FTAA a reality by 2005.

Having seen the problems with NAFTA — which included major labor dislocations and new legal mechanisms that undermined all manner of consumer and environmental protections — civil society organizations were concerned. As they began to get access to draft chapters of the FTAA, their analyses pointed to grave implications for food security, the availability of medicines, water, and basic services, and access to scientific knowledge itself.

One of the biggest concerns was the investment chapter of the FTAA. Just like NAFTA’s Chapter 11, it granted expansive new rights to foreign investors, which they could enforce through the now-infamous Investor-State Dispute Settlement Mechanism (ISDS). That system allows corporations to bypass national courts and sue countries directly in private international arbitration tribunals when they feel that their investments — and profits — are being affected by a public policy. Social organizations considered this a direct attack on sovereignty and democracy.

Controversy over ISDS bolstered the popular perception that this was not an agreement for trade or integration based on the common good, but rather an expansionist project into Latin America — with its huge consumer market and immense natural resources — based on the commercial and corporate interests of the United States.

The consequent mobilization against the deal was enormous and decisive. At the fourth Summit of the Americas, held in Mar del Plata, Argentina in November 2005 — the very year in which the FTAA was supposed to be inaugurated — the proposed trade deal was pronounced dead.

Defeating the FTAA

While the social organizations’ analysis of the proposed trade agreement might have been on point, it’s a big leap from robust critique to outright victory. What strategies did social movements use?

The first was to construct a diverse yet united movement with a common goal. Building on the experience and the networks created through U.S., Mexican, and Canadian organizing against NAFTA, the movement began to coalesce during the late 1990s into the Hemispheric Social Alliance, or HSA. The alliance united diverse sectors — including indigenous, labor, student, environmental, and women’s movements, as well as sympathetic NGOs and others — from across North and Latin America.

Among the HSA’s most important activities were People’s Summits, scheduled to coincide with rounds of FTAA negotiations. These were popular assemblies where discussion could happen and strategic lines of struggle could be defined. The summits pushed the movement to develop a common agenda and construct a common language. According to participants, one very important decision was to concentrate on what members found agreement on, and leave areas of disagreement open for discussion. The summits were also moments for filling the streets of the host cities with debate and color — and for dialogue with local people about the ways in which the FTAA was going to affect their lives.

By closely examining the impact of prior trade agreements such as NAFTA, and the drafts of the proposed FTAA text, the HSA grounded its opposition to the deal in high quality analysis. But in order to persuade the public, this had to be accompanied by effective campaign messaging. “No to the FTAA!! Yes to Life!! Another America is Possible!!” became ubiquitous across the region — from the banners displayed in demonstrations to buttons, hats, and pamphlets distributed in the streets.

Also important was the ability of the alliance to propose alternatives. The movement wasn’t opposed to the integration of the Americas. Rather, underlying the “Alternative for the Americas” proposal was a vision for an alternative to neoliberal integration based on principles of democracy, sovereignty, social wellbeing, equality, and sustainability.

A final key factor in defeating the FTAA was the ability to build on alliances with leftist governments in the region and bring them into the opposition camp. Leaders with critical viewpoints toward “free trade” and many with close ties to social movements were coming to power in Brazil, Argentina, Bolivia, and Venezuela. ” It is often assumed that it was the progressive governments which defeated the FTAA,” notes Alberto Arroyo from the Mexican Free Trade Action Network. But the truth is that it was the movements that brought these governments to power, and later the movements were able to show these new governments the seriousness of what was happening.”

By 2005, the regional balance of power had shifted, and progressive governments — in response to sustained social movement pressure — were changing their positions. Despite the efforts of President George W. Bush to resuscitate the agreement in Argentina, the summit that year marked the death knell for the FTAA. The social movements had won a major victory and celebrations took over the streets.

There was plenty for the social movements to rejoice about. But organizers were neglecting at their peril the scope of challenges to come.

Corporate Interests Regroup

It didn’t take long to see that corporations and free-trade oriented governments had designed a new way to expand the system.

Undaunted by the setback, corporate interests shifted strategies, moving ahead with bilateral and other multilateral free trade agreements, or FTAs. For example, the United States signed FTAs with Chile, Peru, Colombia, and Panama, as well as with a bloc of Central American countries and the Dominican Republic (DR-CAFTA). Similarly, the EU signed an FTA with Mexico in 2000. Then, after its failure to negotiate a free trade agreement with the Andean Community of Nations, it signed FTAs with Colombia and Peru.

Initially, only the countries most open to neoliberal economics — Chile, Peru, Colombia, and Central American nations — agreed to this new wave of FTAs. In contrast, those countries where leftist governments had maintained close alliances with social movements in the fight against FTAA — Venezuela and MERCOSUR nations such as Argentina and Brazil — stayed away.

But over time, even those latter countries have begun to accede to corporate power. Strikingly, Ecuador — formerly a very vocal critic — joined Colombia and Peru’s FTA with Europe. Brazil — the one country in Latin America that for years had avoided entering bilateral trade agreements — signed an FTA with Mexico, and is moving toward others. MERCOSUR (consisting of Argentina, Brazil, Paraguay, Uruguay, and Venezuela) and Brazil are negotiating a free trade accord with the European Union.

Enrique Daza from the Colombian Free Trade Action Network notes a slow but steady strategy on the part of corporations: “They have an agenda that is not maximalist… they are willing to take gradual steps to slowly implement their policy.”

Opportunities for corporations emerge in particular when social movements lose their strength.

After the Victory, the Decline

With all of these free trade agreements being signed across the region, it’s worth asking: What happened to the social movement that only a short while earlier had defeated the FTAA?

The movement’s inability to stay united and independent from leftist governments post-FTAA worked against it. In 2004, Cuba and Venezuela spearheaded the Bolivarian Alliance for the Peoples of Our America (ALBA). Not only did ALBA’s vision grow out of HSA proposals, but it established a Social Movements Council as the “principle mechanism that facilitates integration and direct social participation.”

As HSA turned toward supporting this grouping of “pink tide” governments, it lost some of its critical edge. In the words of Arroyo, “remaining silent in order not to weaken governments in relation to domestic right-wing groups was a mistake.” Lamenting that “losing autonomy weakens the movement for the next stage of struggle,” he observes, “at the end of the day the subjects of change are the people, not the governments.”

Having lost both its international unity and its independence from left-wing Latin American governments, the movement was prepared neither for the corporate counteroffensive nor for sustaining itself during periods of decline.

Lessons for Current Struggles

By 2016 it’s become clear that big inter-regional agreements — combined with new bilateral trade and investment deals — are the most prominent way to write the rules of the global trade system in the 21st century. What the United States and Europe couldn’t do within the World Trade Organization or with the failed Multilateral Agreement on Investment in the 1990s, they’re doing country by country, region by region.

Now comes the real moon shot. If the TPP and TTIP are fully implemented, they would cover 60 percent of global GDP and 75 percent of global trade, as the Transnational Institute’s Susan George indicates.

A cohesive trans-continental social movement like the kind that coalesced around the FTAA is unlikely to form again. But current movements fighting trade agreements can draw important lessons from the anti-FTAA movement. As we engage in these struggles, what does the successful FTAA campaign tell us about how to build power in our respective domestic contexts?

One lesson is to harness the power of groups that are already mobilized. The FTAA effort effectively drew on Latin Americans’ anger and frustration following years of structural adjustment, austerity, privatizations, and deregulation, and built on a growing anti-imperialist consciousness. It was able to channel the energies of the groups already mobilized on these issues into the FTAA campaign.

Although today’s political context is very different, connecting our analysis and messaging on the TPP to the concerns of current movements in the TPP countries will help to maximize our power. Examples include the labor movement working on issues of inequality, jobs, and the minimum wage; groups mobilized on issues of digital privacy in the wake of the NSA scandal; student movements in Chile, Mexico, and the United States; and the environmental movement mobilized around the Keystone XL pipeline and fracking in the United States, tar sands in Canada, nuclear power in Japan, coal campaigning in Australia, and climate change everywhere.

Another related lesson is the importance of making the abstract concrete. The FTAA campaign effectively connected analysis of hard-to-understand and seemingly irrelevant aspects of the draft texts — such as investor-state dispute procedures — with specific concerns of different domestic sectors.

Now that the final text of the TPP is available, there’s an urgent need to do the same.

That means, for example, communicating to public health advocacy groups and health professionals’ organizations about how intellectual property provisions and extended patent protections for pharmaceuticals will affect access to medicines. It means making it much clearer for the environmental movement how energy and climate legislation — such as restrictions on fracking, coal, and nuclear power — could be undermined by investor-state lawsuits, like the $15 billion suit just launched against the US government for blocking the Keystone XL pipeline. And it means showing small and medium-sized business associations how restrictions on procurement will prevent governments from favouring local producers.

Whack-a-Mole

ISDS was a key issue in provoking outright rejection of the FTAA. Now, over ten years later, we have much more evidence to demonstrate, in very concrete ways, the risk that this system represents for a wide array of urgent public issues. With the high profile of the ISDS issue in Europe currently, there is a multitude of qualityaccessible campaign materials that can be used to this end — including a diverse array of voices, from conservative think tanks to trade unionists, joined in unlikely alliance against it.

Finally, we should note the importance of creating alternative proposals. The anti-FTAA campaign was very clear that they were not against the integration of the Americas. Rather, they proposed a different kind of integration that was not based on the interests of corporate profits, unhindered competition, and a race to the bottom.

While regional integration in Latin America has been slow, if the FTAA had been signed it may well have made these initiatives impossible, as regional economies would have been pulled even more tightly into Washington’s orbit. Obama was quite explicit about his intention to re-write the rules for international trade in these new deals. Highlighting the geo-strategic implications of the TPP, including the potential impact on alternative regional integration processes in Asia and Latin America, may also give us some leverage at the domestic level.

The FTAA campaign undoubtedly holds valuable lessons for our current efforts. However, what happened in Latin America subsequently — when corporate power regrouped and went on the counterattack in the face of a weakened civil society — tells us something even more important about the nature of the challenge we face.

Even if we defeat the TPP, challenging corporate power is like playing whack-a-mole: it will find other ways to expand. So while we fight our local battles, and continue building a globalized movement of local struggles, we mustn’t lose sight of this bigger question about how we dismantle corporate power. The calls for a restructured, fairer global economy are growing louder by the day. While we have our mallets poised and ready, we also need to continue planning how to put the mole out of action for good.

Ten Years After the Defeat of the Free Trade Area of the Americas (FTAA) – Lessons for Current Struggles

At the 4th Summit of the Americas 10 years ago in Mar del Plata, Argentina, the proposed Free Trade Area of the Americas was pronounced dead and buried. Today, 10 years on, the Democracy Center has interviewed three prominent social leaders who successfully fought, alongside hundreds of activists and organizations from across the continent, against what was intended to be the world’s largest free trade area and the greatest corporate offensive in modern history.

Our interviewees are all from organizations that are members of the Hemispheric Social Alliance (HSA): Alberto Arroyo from the Mexican Free Trade Action NetworkPaulina Muñoz from Ecuador Decides; and Enrique Daza from the Colombian Free Trade Action Network who was also responsible for the secretariat of the HSA.

The aim of our interviews has been to gather as many lessons as possible, not only in relation to the victory against the FTAA but also from subsequent developments in the region. We critically explore the corporate counter-offensive in the Americas and worldwide and the evolving role of social movements in light of these developments. Finally, we present a series of reflections on the fight against the system globally and on the evolution of the international social movement.

Just as the FTAA was a crossroads, we are currently at another crossroads.  We recently saw the announcement of the end of the Trans Pacific Partnership (TPP) negotiations, and the US and EU are pushing hard to finalise the TTIP and other major trade and investment deals. The weeks and months to come will determine whether the current free trade regime can be consolidated at global level, or whether it will once again fail thanks to social movement mobilisation.

Our overarching aim is to contribute to the strategic thinking for these current struggles in the Americas, Europe and the rest of the world.

FTAA: An Annexation Project

The FTAA or Free Trade Area of the Americas was formally conceived of as a project at the first Summit of the Americas held in Miami, USA, in December 1994. In the Declaration of Principles from the Summit, Presidents unanimously declared that “a key to prosperity is trade without barriers, without subsidies, without unfair practices, and with an increasing stream of productive investments.” They decided to begin negotiations in earnest, with the aim of making FTAA a reality by 2005.

This incredibly ambitious project involving 34 countries in the Americas, all except Cuba, was to be an extension of the North American Free Trade Agreement (NAFTA), which came into force in January 1994. With a market of 800 million consumers and a GDP of $11.5 billion -40% of the world’s total at the time – the FTAA promised to be the largest free trade area in the world.

However the project, despite being promoted at the height of neoliberalist expansion, was blocked thanks to the actions of a key stakeholder that was sidelined from the beginning – organized civil society.

As in any trade deal, the FTAA draft texts were not available to the public. However, as social organizations began to gain access to leaked drafts, it became clear that this was not just a trade agreement. The various analyses of the texts quickly revealed that the project represented a serious threat to the economic sovereignty of the Latin American countries involved, while having grave implications for a range of sensitive public issues, from food security and sovereignty to public access to water and basic services; and from access to medicines to (scientific) knowledge itself.

Undoubtedly, one of the most important early findings was that the investment chapter of the FTAA, just like NAFTA’s Chapter 11, granted a series of rights and protections to foreign investors, which they could enforce through the now infamous Investor-State Dispute Settlement Mechanism (ISDS).  The social organizations concluded that a system that allows corporations to bypass national laws and sue countries directly in international tribunals when they feel that their investments are being affected by a public policy was a direct attack on sovereignty and democracy.

This hugely controversial issue helped catalyse the outright rejection of the FTAA and the popular perception that this was not an agreement for trade or integration based on the common good, but rather an expansionist project into Latin America (with its huge consumer market and immense natural resources) based on the commercial and corporate interests of the United States.

Finally, after several years of intense campaigning, the FTAA was pronounced dead in Mar del Plata in 2005 – the very year it was supposed to be inaugurated.

Defeating the FTAA – Lessons From the Campaign

Campaigning, as we know, is much more of an art than a science – a creative dance between strategic planning and constantly adapting to the evolving circumstances. It was no different in the campaign against the FTAA.

Nonetheless, it’s instructive to take a look at some of the lines of strategy identified by our interviewees as being decisive for victory in the campaign. They include: a diverse but united movement with a common goal; strong analysis translated into clear messages and alternative proposals; and the ability to convince new governments of the dangers of FTAA and to bring them into the opposition camp.


1. The Hemispheric Social Alliance: A Base For Organising

Regarding the first of these, the common platform under which the movement against the FTAA was organised was the Hemispheric Social Alliance (HSA).  In the words of its secretariat, the HSA emerged in the late 90s, as a product of “the fight against the proposed FTAA; it represented a pluralistic, anti-neoliberal and anti-imperialist coalition, with the participation of various social sectors (indigenous, small farmers, trade unions, students, women, etc.) and progressive currents from various NGOs and thematic and sectoral networks”.

While our respondents make it clear that the Alliance did not claim to be the only instance of struggle against the FTAA, they agree that this platform was able to achieve continental unity.  As Paulina Muñoz says, “This was truly a hemispheric movement that could articulate, from all of the countries involved, a joint struggle with a common goal.”

Alberto Arroyo agrees with Muñoz, affirming that “almost total unity was achieved.” And while he acknowledges that there were internal differences, these differences were resolved through open discussion. In his words, “there was a basic principal that we did together what we agreed on, and otherwise the discussion remained open. This allowed us to be effective in the fight and not to get lost in discussions about things we didn’t agree on that were sometimes secondary; it allowed us to concentrate on what agreements there were, and, by not inhibiting discussion, we were able to move towards consensus.”

Enrique Daza also highlights unity and the ability of the organizations to cohere under one banner as a key factor in the defeat of the FTAA.  For Daza the Alliance “was the product of a confluence of very heterogeneous sectors with different positions….where the main thing was the fact that various nuanced positions came together in a common struggle.”

In terms of how it operated, there were a wide variety of activities organised by the HSA during the campaign. Undoubtedly one of the most important was the Peoples Summits, which coincided with rounds of FTAA negotiations. According to Daza this obliged the movement to have a common agenda and to construct a common language. The Summits were also spaces where issues could be openly discussed, and where strategic lines of struggle were defined. These were also the moments for filling the streets of the host cities with debate and colour, and where lively dialogue could take place with local people about the ways in which the FTAA was going to affect their lives.

2. Strong Analysis, Clear Messages and Alternative Proposals

The second key aspect in the victory against the FTAA, again identified by all three of our interviewees, was the ability to persuade the public and to propose alternatives.

In the opinion of Arroyo “the No position won because we were able to convince people, it was not about someone imposing their position.” Muñoz highlights in this process, “the ability to undertake a serious, technical and professional analysis of the implications of this type of treaty in previously signed agreements, which gave strength and added value to the movement, because it was not just about ideological opposition but looking thoroughly and in depth at the implications of this treaty.”

In terms of messaging, the powerfully succinct message of “No to the FTAA!! Yes to Life!! Another America is Possible!!” became ubiquitous slogans across the region – from the banners displayed in the demonstrations, to buttons, hats and pamphlets that were distributed in the streets. As Daza recalls in relation to the ‘No FTAA’ symbol, “I think that the use of that symbol internationally was important and it managed to create among the population the idea that it was a negative thing … and we are talking about a time when there were, for example, no (online) social networks and other current tools.”

Another factor referred to by our interviewees was the ability of the Alliance to propose alternatives. As we can see from their documents, the movement was not opposed to the integration of the Americas, but they considered that any form of economic integration among their nations must, first and foremost, serve to promote equitable and sustainable development for all. That was the general vision of the “Alternative for the Americas“, an alternative proposal to the dominant model of integration of the corporations and neoliberalism embodied in the FTAA, and whose fundamental principles were democracy and participation; sovereignty and social wellbeing; equity and reducing inequalities; and sustainability.

According to Paulina Muñoz, tapping into both ideological opposition and the acute awareness in the region of the recent history of US-Latin American relations also provided important opportunities in terms of mobilising diverse groups.  In a historical context characterised by the Washington Consensus and societies reeling from the impacts of structural adjustment programs, and in which several countries were re-building their democracies after long periods of US-backed dictatorship, the cultural symbolism of this latest US ‘expansion’ was not lost on organisers.  According to Muñoz, “the social movement, especially the youth, had a very clear understanding of what the United States represented. There was a very clear anti-imperialist consciousness and it was important to come together and coordinate based on that”. For Daza this was fuelled by “the arrogance and domineering attitude of the United States that resulted in even some of the countries under its influence not wanting to sign it.”

3. Alliances with Governments

Lastly our interviewees highlighted the alliances created with the different leftist governments in the region as another key factor in defeating the FTAA.  For Enrique Daza, the victory was largely made possible by this “confluence of the action of social movements with leftist governments.” However, all our interviewees agree that it was the social movements that fought for a long time alone against the FTAA.  These new governments were, after all, a product of this and other social movement struggles on the continent.  As Arroyo says, “it is often assumed that it was the progressive governments which defeated the FTAA….but the truth is that it was the movements that brought these governments to power and later the movements were able to show these new governments the seriousness of what was happening in the negotiations.  Of course, once this alliance was achieved our chances of defeating the FTAA were greatly increased.”

When presidents from across the hemisphere eventually gathered for the 5th Summit of the Americas in Argentina in 2005, everyone knew it was the end of the FTAA – by now very much on its last legs. Despite the efforts of President Bush to resuscitate the agreement in Argentina, the Summit marked the death knell for the FTAA.  The social movements, also gathered in Mar de Plata for the parallel Peoples Summit, had won a major victory and celebrations took over the streets of the city together with the local population.

The Regional Counteroffensive – Divide and Conquer

However, they didn’t have to wait long to see that corporations and pro-free trade governments had designed a new strategy to expand the system, probably anticipating the failure of the FTAA.

While the FTAA looked like it was dying, the United States had already signed a Free Trade Agreement (FTA) with Chile that took effect in 2004. Also, in 2003 the United States and countries in Central America began negotiations to sign the future Dominican Republic-Central America Free Trade Agreement (DR-CAFTA), which took until 2012 to be ratified by all of the countries involved.  The U.S. then tried unsuccessfully to negotiate a FTA with the Andean Community of Nations (Bolivia, Venezuela and Ecuador withdrew from the negotiations) and ended up just signing FTAs with Peru and Colombia that came into force in 2009 and 2012 respectively.  The U.S. also made an attempt to negotiate a TLC with MERCOSUR during this period, but it died before even getting to the negotiating table.  Finally an FTA was signed between the U.S. and Panama, coming into force in 2012.

Knowing that this strategy was succeeding, the US government wanted more, this time pushing an agreement that would transcend continental boundaries but include some Latin American countries. The Trans-Pacific Partnership (TPP), involving Australia, Brunei, Japan, Malaysia, New Zealand, Singapore, Vietnam, the United States, Canada, Mexico, Chile and Peru, will do just that. As pointed out by Enrique Daza, the latter three countries, together with Colombia, form the Pacific Alliance – a bloc that promotes free trade in the region, in contrast to the more protectionist proposals of the countries grouped in the Southern Common Market – MERCOSUR, which is made up of Brazil, Argentina, Uruguay, Paraguay and more recently, Venezuela and Bolivia.

The TPP is not the only example of agreements that have transcended continental borders, and the United States is not the only power interested in expanding the system and its corporate interests into Latin America and beyond.  Enter the European Union. Among the most important EU initiatives have been the FTA signed with Mexico in 2000 and the FTAs with Colombia and Peru (effective since 2013), after the failure of their attempt to negotiate a free trade agreement with the Andean Community of Nations.  Like the U.S., when the strategy of negotiating ‘en bloc’ failed, the EU went country by country.

The European Union is also attempting to negotiate a trade agreement with the countries of MERCOSUR.  However, what has been most striking in all of this process is that the government of Ecuador, a very vocal critic of the system, has finally agreed to sign on to the same FTA signed between the European Union and Colombia and Peru, a fact that has raised questions and internal social mobilization in the country.

To this whole push to expand the system must be added the rapid increase of bilateral investment treaties and investment agreements that have been multiplying rapidly since the new millennium – to over 3000 agreements today according to UNCTAD.  This web of agreements, in which all of our countries participate, also gives excessive rights and protections to corporations in the same way as the investment chapters of FTAs do.

Against this background of apparent regression, one could ask oneself what happened in the region? What happened to the social movement and to the power that only a short while ago defeated the FTAA?

Overall Assessment and Lessons From The Post-FTAA Process

There are three elements that our respondents self-critically identified to explain this decline: the dynamics of corporate power; the inability of the social movement to remain united and autonomous from governments; and the lack of preparation within the movement for the work that would be required during periods of decline.

First of all, Alberto Arroyo noted that although these post-FTAA triumphs of the expansionist trade system did occur, they were not comprehensive.  In his words, “neither the US nor Europe succeeded in signing FTAs with countries other than those with the most neoliberal governments in Central America, Chile, Peru, Colombia.  But they haven’t been able to do the same with countries where movements were stronger and where governments were allied with social movements in the struggle against the FTAA, for example Venezuela and MERCOSUR.”  They were also unsuccessful in courting the new governments of Bolivia and Ecuador when they came to power in 2006 and 2007 respectively.

But he also alerts us to some shifting regional winds. “The situation has, however, now changed because Ecuador has signed an agreement with Europe, and there is a dangerous rapprochement both by Brazil and also by MERCOSUR, with both Europe and the US.”

Brazil, which was the only country on the continent that had not signed any bilateral investment treaties, recently negotiated four new deals, including one with Mexico that is pending ratification.

Arroyo described this as a “new wave [of agreements] in which even those governments that were allies of social movements in the struggle against the FTAA, are now beginning to take a different position.”

According to Arroyo, this can be explained by the “immense power of corporations, and their ability to create economic situations that generated a perception in some governments that it was not possible to remain outside this whole process.”

Enrique Daza meanwhile believes that corporate progress has been slow but steady. In his opinion, “they have an agenda that is not maximalist…they are willing to take gradual steps to slowly implement their policy…the multinational [corporate] agenda works by gradually accumulating victories.”

In the same vein, while Arroyo maintains that this is “a mistaken attitude by these governments [to believe that they could stay outside of this system]”, he also insists that “we must try to see the issue as a political process of power, and not as a personal matter of those individuals in power. Corporations have been imposing themselves, and they have done so at a time of weakness of the movement…..global power will always await better times to try again.”

This “weakness” of the social movement that Arroyo alludes to is directly related to the second aspect of this assessment by our interviewees: the lack of autonomy of the movement in relation to leftist governments as a key factor in ultimately aiding a successful counter-attack by those seeking an expansion of the global free trade system.

On this point, according to Alberto Arroyo, “after ALBA[1] was formed, the HSA took the stance that of course we had to support them [progressive governments], but that should not have meant that we ceased being critical towards the things we didn’t agree with.  Remaining silent in order not to weaken governments in relation to domestic right-wing groups was a mistake. Because after a few years what happened was that the process of structural change hoped for in these countries could not continue. For a time, it was good to support these governments, but losing autonomy weakens the movement for the next stage of struggle. So the lesson is that yes, it was a mistake not to maintain autonomy…. (because) at the end of the day the subjects of change are the people, not the governments.

Muñoz agrees with this view and notes that “there has been a co-optation of the movement using its own discourse and symbols, resulting in the weakening of the social movement.” She cites as an example recent developments in Ecuador.

Daza shares this view, but he also emphasizes the mistaken analysis by the movement itself in believing that the good times would always be here.  This brings us to the third element in this analysis.

In Daza’s view “the social movement has its natural cycles, and there are moments of boom and moments of decline. So I think there was the mistaken belief that it would be in a permanent ascendance and preparations were not made during the good times for the work that would have to be done at the time of decline of the movement”.

For Daza, this error is closely related to an overestimation of the movement’s capacity to confront the next stages of transformation. In his view, “there was a general feeling in the social movement that big changes could be made quickly in Latin America. I think there was quite a bit of subjectivity in that; there was a certain overestimation of strength, an all-pervasive optimism. The movement in many countries did not have the robustness, did not have the strength to achieve any more. It was also thought that the process of internal transformation of countries could be faster, but it was more difficult than previously thought, and the strength of the right wing, even in countries where the left won, remained significant. So I do not think this has been a defeat, but an expression of reality, [an expression] of the real balance of power.”

Final Thoughts – A Global Regime, A Global Movement

So far we have garnered some important lessons from our interviewees regarding the victory of the social movement in the Americas against corporate power and free trade as represented by the FTAA, while taking a critical look at what can also be learned from subsequent events. Of course there are many more lessons to be considered in both cases.

To what extent these reflections have relevance for current movements – whether in the Americas against the TPP; or in the campaigns in the U.S. and Europe against the TPP, TTIP, TISA and CETA – is for each of us to analyse and evaluate from our respective contexts

What is beyond question is that these big inter-regional agreements, combined with new bilateral trade and investment deals, represent the most recent drive to write the rules for the global trade system in the 21st century.  What the US and Europe could not do within the World Trade Organisation or with the failed Multilateral Agreement on Investment in the 1990’s, they are doing country by country, region by region.  If just the TPP and TTIP were to be fully implemented, the US government would control[2] 60% of global GDP and 75% of global trade.  Commenting on why the TPP is so important for his government, Obama recently said that “…we can’t let countries like China write the rules of the global economy”.   One of the knock on effects of this geo-strategic maneuvering is that it will make alternative regional integration initiatives, in regions such as Latin America, extremely difficult, as countries will be under intense pressure to adhere to the dominant regime.

Given the urgency of the current juncture, we would like to present some final general reflections by our interviewees.  These closing ideas aim to contribute to the strategic thinking of the worldwide movement. They point to, on the one hand, the importance of reinforcing the global nature of the struggle, and on the other, underlining the need to constantly reinvent the social movement.

For Enrique Daza “this whole process of FTAs and BITs is in essence a great conspiracy by multinationals that want to become a kind of world government that sets the course of the economy.” Therefore, as Paulina Muñoz says, it is necessary to take the criticism beyond these treaties and to “show that such agreements respond to a claim to global hegemony by the economic interests of transnationals.” All this points to the need to also conceive of the struggle as a global struggle, as Alberto Arroyo highlights, it is “a struggle for a different international structure.”

For Muñoz, a key factor for achieving this goal is related to the commitment of the entire global social movement, regardless of whether or not a country is involved in current negotiations. The idea even transcends the concept of solidarity. In her opinion, “this is not about support or solidarity, it is about taking up the peoples’ struggles as a whole. It is about your struggle being my struggle”. If this were to happen, she says, “the corporate strategy of promoting bilateral or regional agreements would not be having the relative success it is currently having.” She adds “when we consider the European Union, for example, and the FTAs signed with Colombia and Peru, and now Ecuador – the latter being the one that generates most concern – they all alert us to a clear symptom of the decline of the movement and the success of the system. That is, it has crossed a line that we can not allow.”

For Muñoz, while the case of the signing of the EU-Ecuador FTA shows up the deficiencies of the movement, it also caught people completely by surprise. According to Muñoz “a key element in the electoral success of the [Ecuadorian] government” had been its consistent vocal opposition to the free trade regime and so sectors that had been working on these issues were demobilised. Once the government’s about-face became clear, regenerating the movement has been challenging.

Making campaign work even more complicated has been the ambiguous reputation of the EU in the country. “For us it was difficult to establish our position on the FTA with Europe in Ecuador, because Europe has an image of supposed respect, an image of humanism and of being protective. That made it very difficult to show that Europe was being as aggressive as the US with its project.” Therefore, she says, “it is necessary to assert the issue at the international level, beyond our continental borders. We need to understand that to beat a global system that is expanding simultaneously on both sides of the Atlantic and from North to South, it is necessary to act simultaneously on both sides of the Atlantic, from North to South.”

Another example of the need to act globally has to do with recent concerns in official circles in Europe, including in the governments of France and Germany, about the dangers of the ISDS mechanism. These concerns are the result of the campaign in Europe against TTIP and CETA, but also the result of first-hand experience by governments in the region with what the system is capable of. Nearly half of all new ISDS cases in 2013 were against countries of the European Union. If the TTIP is signed, including ISDS, 100% of U.S. investments and corporations on European soil (47,000 companies) would be given the green light to sue national governments if they feel their interests are affected by changes to policy or court decisions. Currently only 8% of US corporations have such protection.

Given this continued pressure, the European Commission has proposed some reforms to the system. While the proposed reforms would change some ISDS procedures, they do not change the essence of the system, which is the privilege given to corporations to bypass domestic courts and sue national governments in international investment tribunals. The reform agenda has already come in for harsh criticism from European social organizations.

The point here is that even though ISDS has been a stumbling block in negotiations in Europe, we should never expect to see Germany or the European Commission proposing to reform these measures in the treaties that Europe has signed, or is attempting to sign, with the countries of Latin America or other ‘underdeveloped’ countries. And why is this? A case of doublespeak? Enrique Daza says no. “I would not call it doublespeak. They are defending the interests of their companies. They defend them in their own markets and they defend them in the conquest of foreign markets. So they do not want the standards that they are applying to Latin America to be applied to them, and that is understandable from the point of view of their business interests.”

Alberto Arroyo, in a more sarcastic tone, says that in Europe they understand perfectly what this is about, but they want to have those rights for their corporations outside of their territory. In his own words, “it is clear they do not want such a tough mechanism when it comes to them. It’s okay to apply it to the poor third-world countries, but not between themselves. They’ve got some nerve.”

The contradictions and blatant double standards on the ISDS issue of course show the need to further globalize the struggle against the system. The current mobilization on this issue is an important opportunity for the global movement.

Although, as our interviewees have pointed out, there is resistance in Latin America to new and existing trade deals, much of the movement’s energy in the region is also being used to confront ISDS cases on the ground.  This often involves working with organizations resisting extractive industries, environmental pollution and the criminalization of social protest.

Figuring out how this case-by-case work on ISDS and the international movement can mutually support each other will be an important challenge going forward. Another will be to effectively inform and mobilise the ever expanding range of groups working on new issues affected by the ISDS system (public health, smoking, cancer, water, food, fracking, climate change).

This brings us to the final reflection made by our interviewees – on the need to constantly rethink and reinvent the movement.

In the case of the Americas, our respondents suggest that it would be a mistake to think that you can repeat the experience of the Hemispheric Social Alliance. In the words of Alberto Arroyo, “the movement has changed and we must enter into dialogue with this new movement in America, Europe and the rest of the world”.  He remarks on the diversity of “innovative new movements with different organizational cultures and different [kinds of] political education, with forms of struggle… that do not come from the culture of the old traditional parties or movements”. He goes on “they have incredible strength, incredible creativity, use of social networks, efficient use of Twitter and use of electronic media that have achieved very interesting things. So the challenge for us is how we can learn from this culture while contributing what we have learned from our years of struggle, that is to say an inter-generational dialogue from which we could develop new strategies and new, united forms of organisational structure in order to confront this global system with a global movement.”

We are already witnessing forms of reinvention in Europe. Last month saw a major International Week of Action against FTAs – beginning with the submission of more than 3.3 million signatures in opposition to TTIP and other free trade deals, and ending with popular mobilisations across the continent, including 250,000 people on the streets of Berlin for a massive anti-TTIP demonstration. European citizens are clearly not going to take the further expansion of the free trade regime sitting down.

These reflections on the global movement leave us, as before, with more questions than answers. Our ability to respond to those questions will depend on our continuous processes of creative reflection and of permanent re-imagining of a global movement based on local and regional struggles. Upon these processes of reimagining will be built the new forms of integration, news ways of relating, and new expressions of universal principles of democracy, participation, sovereignty, social wellbeing, equity and sustainability that the HSA stood for.

As we navigate our way, however, the lessons from our past victories provide us with valuable signposts towards our future ones.

Who really wins more ISDS cases – governments or corporations?

Last week the United Nations Conference on Trade and Development (UNCTAD) released its annual World Investment Report. The report is an important source of information for researchers on the notorious Investor State Dispute System (ISDS). It highlights trends in the global trade and investment system including new trade and investment agreements signed, changes in policy and reform efforts by governments. It also reveals some basic statistics on how many new ISDS cases are launched each year, and the overall statistics on the outcomes of ISDS cases.

This year there was a change in the way UNCTAD presents this last figure – the overall statistics on the outcomes of ISDS cases. Understanding that change could provide a useful tool for campaigners in the current TTIP debates. On July 8th European Parliament members expressed their support for a TTIP deal in which a proposed  ‘new version’ of ISDS would leave its most pernicious mechanisms essentially untouched.

The figures in question relate to:
– How many ISDS cases have been won by the corporation (the investor)?
– How many ISDS cases have been ‘won’ by the government that is being targeted (the state)?
– And how many ISDS cases have been settled?

More on this topic

TTIP: the Corporate Trump Card

In 2014, using the traditional UNCTAD methodology, figures on ISDS outcomes read as follows:

[By the end of 2013] the overall number of concluded cases reached 274. Of these, approximately 43 per cent were decided in favour of the State and 31 per cent in favour of the investor. Approximately 26 per cent of cases were settled.

What it means for a government to ‘win’ an ISDS case

Only corporations can bring ISDS cases against governments.
Governments, therefore, can’t ‘win’ cases as such.
Although we use the word ‘win’, the best possible outcome for a State is to not lose.
And even when States defend themselves successfully, they are often
liable for all of their own legal expenses – on average $8million.

On the face of these statistics, States have won more ISDS cases than investors. This is why we often hear defenders of the system saying the system is not biased in favour of investors. They say that even the UN statistics show that States win more than investors do.

So what has changed with UNCTAD’s 2015 report?

This year UNCTAD presented the figures on the outcomes of ISDS cases in the same way as they always have, but then added this:

“Looking at the decisions on the merits only, 60 per cent were decided in favour of the investor, and 40 per cent in  favour of the State.”

This obviously gives a rather different picture of the ratio of investor-to-State ‘wins’. In order to understand the change we need to understand the process that an investor must go through when bringing an ISDS case.
The process has two stages. The first stage is a hearing to determine whether the tribunal has jurisdiction to hear the case; the second stage is to actually decide on the merits of the case – where the tribunal arbitrators hear the accusations of the investor and the defence of the government and decides who is right.

What it means for a government to settle an ISDS case

A settlement implies that the government has changed its position in relation to the case. This involves a concession of some sort to the investor – either a payment of compensation or a change in laws or regulations. For example, in Germany when the government faced an ISDS case brought by Swedish energy multinational Vattenfall, it settled by getting the city of Hamburg to lower the environmental standards for a planned coal-fired power plant. (Ironically, legal action is now being brought against the German government by the EU Commission for not sufficiently protecting the Elbe River that surrounds the plant). If we count settled ISDS cases – that involve some form of concession to the investor – as at least partial wins for the corporation, we see to what extent the system is skewed in their favour.

With the traditional methodology used by UNCTAD the results of stages one and two were bunched together. So when they say ‘the overall number of concluded cases reached 274’, the 274 cases include both the concluded hearings on jurisdiction and the concluded hearings on the merits.

When you separate the numbers out you can see that a significant proportion of the so-called State ‘wins’ are actually jurisdiction hearings where the arbitration was terminated at jurisdiction stage i.e. the claims by the investor did not come under the tribunal’s legal competence.

When we look at the number of cases that actually got to the merits stage, we get a very different picture of the system. From the example above (end of 2013), the number of cases that actually got to the merits stage was 184 (the total number of ISDS cases  – 274 – minus the 71 cases that were terminated at jurisdiction stage). Of these 184 cases in which the merits of the allegation by the investors against the governments were actually considered, investors have won 111.

Investors have thus in fact won 60 per cent of ISDS cases where the case has actually gone on to a full hearing on its merits – considerably more than the 43 per cent suggested by the previous methodology. While this has always been the case, UNCTAD did not make it explicit in its reporting, until now (under pressure from campaigners).

So the old simplistic defence that States win the majority of ISDS cases does not stand up to scrutiny.   This greater transparency from UNCTAD will hopefully aid campaigners seeking to show the threat that the ISDS system poses to sovereignty and democracy, in TTIP and elsewhere.

For more info, see iisd.org here and here.

TTIP: the Corporate Trump Card

If passed, the Transatlantic Trade and Investment Partnership (TTIP) trade deal will give corporations a new weapon to undermine future fracking bans and regulation in Europe. The deals’ investment chapters will grant corporations access to a system of private international tribunals to enforce a range of new rights.

This system, known as the investor-state dispute settlement (ISDS) mechanism – a veritable corporate trump card – is already being used by one US corporation to undermine fracking bans elsewhere. In the Canadian province of Quebec, the government has introduced a moratorium on fracking pending further tests and research. One of the corporations involved, Lone Pine Resources, is using the investment chapter of the North American Free Trade Agreement (NAFTA) to bring an ISDS case for $250million.

More on this topic

Who really wins more ISDS cases - governments or corporations?
The ISDS system allows corporations to sue not just for what they have invested in a country when a government changes a policy or regulation but for what they expected to earn into the future. Hearings take place in private tribunals overseen by arbitrators working on a for-profit basis who move seamlessly between their roles as supposedly ‘independent’ arbitrators to their other work as corporate lawyers. Cases can only be brought by foreign corporations and there is no corresponding right for domestic companies – or indeed for governments or citizens when corporations cause human rights abuses.

If there was any doubt as to the intention of corporations to use this system in conflicts in Europe, the contribution to the consultation on the TTIP in the US by the Chevron corporation, which has fracking interests in several EU countries, is illuminating. It dedicated its entire response to the area of ‘investment protection’ – what it called ‘one of our most important issues globally’.

Europeans don’t have to go far to see this system at work. In Germany the government changed its policy on nuclear energy following the Fukushima disaster, cancelling some planned nuclear plants. It is now being sued by energy corporation Vattenfall for over €1 billion.

Nor was this the first such case. When Hamburg‘s environmental authority imposed quality controls for the waste waters released into the river from a planned coal-fired power plant, Vattenfall used ISDS provisions to seek compensation of €1.4 billion. The case was eventually settled when the City of Hamburg agreed to lower the environmental requirements – a telling indication of the ‘chilling effect’ the threat of such actions can have on policy.

Use of the ISDS system in cases against governments has only really taken off in recent years. Indeed, 2012 and 2013 have set records for the numbers of new ISDS cases – 57 and 58 respectively.

The ISDS mechanism has gone from being a legal tool of last resort in cases of government expropriation of assets to a weapon of choice in struggles over a growing range of important social and environmental issues. The explosion of cases in recent years has led many governments, economists and legal experts around the world to openly criticise the system and attempt to withdraw from it once they’ve seen in practice the threat it represents to democracy and public interest policy making.

The inclusion of ISDS in TTIP would greatly expand this system and likely lead to a further proliferation of cases. Given the very high level of existing trans Atlantic trade and investment, the deal would result in 75,000 firms being newly empowered to use these private tribunals.

The extractive industries, under increasing scrutiny for their role in environmental degradation, are using the ISDS weapon more and more in order to prevent any challenges to their dirty operations. They must be stopped.